A.D. v. T.G. et al.
COURT FILE NO.: 06-CV-319553
DATE: 20130212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.D.
Plaintiff
– and –
T.G., Regional Municipality of York Region Police Services Board, Peter Heard, Scott Browne, York Region Children’s Aid Society, Deena Hugh-Yeun, Bonita Majonis, Denise Lehman Brown, and Certain Unnamed Persons
Defendants
COUNSEL:
Murray Klippenstein and W. Cory Wanless, for the Plaintiff
Giovanna Asaro, for the Defendants York Region Children’s Aid Society, Deena Hugh-Yeun, Bonita Majonis, and Lehman Brown
HEARD: December 10 and 11, 2012
Morgan J.
Reasons for Judgment
[1] Can a parent ever hold a Children’s Aid Society to account for wrongful discharge of its statutory duties, or, as a matter of policy, must a parent’s injuries remain uncompensated as collateral damage if the child itself does not sue?
I. The Parties and the Motion
[2] The Defendants York Region Children’s Aid Society (“CAS”), Deena Hugh-Yeun, Bonita Majonis, and Lehman Brown (the “Individual CAS Defendants”) (collectively, the “CAS Defendants”) seek summary judgment. They argue under Rule 20 of the Rules of Civil Procedure that there is no genuine issue requiring a trial with respect to the claims against them.
[3] The Amended Statement of Claim alleges two sets of claims against the CAS Defendants: slander and intentionally wrongful conduct and/or negligence in carrying out its duties. The latter claims assert that the CAS Defendants intentionally or negligently relied on and failed to correct in their records false allegations of terrorist connections made against the Plaintiff by the Police and by the Plaintiff’s ex-spouse, the Defendant T.G. The former claim asserts that the CAS Defendants repeated and perpetuated the defamatory allegations.
[4] In addition to the causes of action pleaded against the CAS Defendants, the Statement of Claim raises claims of negligence and slander against the Defendants Regional Municipality of York Police Services Board, Peter Heard and Scott Browne (the collectively the “Police”), as well as claims of slander and injurious falsehood against T.G..
[5] The Police and T.G. have both defended the action, but neither of them has joined the CAS Defendants in bringing this summary judgment motion. The Police and T.G. were served with all of the materials filed in the present motion, but they did not appear at the motion or respond to those materials in any way.
II. Family Court Proceedings
[6] The Plaintiff is a Canadian citizen born in Croatia, who is an adherent of the Sufi branch of Islam. He is a successful medical doctor and was previously a professor in the Medical School at G[…] University in Washington, D.C. He and T.G. were married in 1997 and have two children.
[7] The marriage broke down in 2004, devolving into an emotional and difficult period of litigation. As Perell J. commented in an earlier procedural motion herein, “[i]t is also not disputed that the matrimonial dispute was a high conflict and protracted litigation involving numerous court attendances. There was a 13-day property issues trial before Justice Scott, a 17-day custody trial before Justice Maddalena, several ultimately unperfected appeals, and over 50 endorsements.” A.D. v. T.G. et al., 2010 ONSC 3764, at para. 14.
[8] The record in this motion is voluminous. It traces in detail the many stages of the CAS’ dealings with the Plaintiff and his family. This involvement lasted from June 30, 2004, when Family Court ordered the CAS to become involved in the marital dispute between the Plaintiff and T.G., until November 12, 2008, when a final judgment was issued in the Family Court proceedings. The CAS Defendants submit that their entire involvement with the family was ordered by, supervised by, and performed entirely pursuant to judicial process. It is therefore important to outline the history of those proceedings.
[9] The complaints about the Plaintiff that triggered the present law suit will be discussed in more detail below, but it is noteworthy that the CAS received its first recorded complaint about the Plaintiff from T.G. on June 12, 2004.
[10] The CAS was first authorized by Family Court to become involved on June 30, 2004 due to the high level of conflict in the family dispute between the Plaintiff and T.G.. On that date, a Family Court judge ordered an assessor be appointed to evaluate issues of custody and access to the children of the marriage. The court also made a temporary order prohibiting the Plaintiff from unsupervised access to the children.
[11] Through the summer and early fall of 2004, the Plaintiff and T.G. made reciprocal allegations of abuse and threats. These recriminations came to a head on October 3, 2004, when the Police were called to the family home.
[12] For reasons which will become clear shortly, the Police arrived at the home in force. The Plaintiff’s affidavit describes the incident as including a fully armed police tactical unit, bomb squad, canine unit, a dozen police cruisers, and a helicopter. The Plaintiff was arrested and charged with uttering death threats and being in possession of a deadly weapon.
[13] The Plaintiff was taken into custody on October 3^rd^ and then released on bail the following day, October 4, 2004. At the bail hearing the court placed a temporary restraining order on the Plaintiff in relation to T.G., but not in relation to their two children.
[14] Between October 3^rd^ and October 7^th^, the CAS Defendants heard numerous allegations against the Plaintiff, both from the Police and from T.G.. The Police advised that they were providing a personal security escort to T.G. to and from the court for each attendance in the criminal case against the Plaintiff, and were considering placing T.G. and the children in a witness protection program. It is clear that this information had significant impact on the CAS Defendants, who acted immediately to seek further court intervention.
[15] On October 8, 2004, the CAS made an urgent child protection application to have the children placed in T.G.’s custody, with access to the Plaintiff subject to the discretion of the CAS. The court made an interim custody order in favour of T.G., and directed that the Plaintiff have no access with the children pending further order of the court.
[16] On October 14, 2004, the parties consented to an order adjourning the full hearing of the child protection application to October 25, 2004. On October 25^th^, the parties again consented to an adjournment to November 16, 2004, with an agreement that the court appointed assessor would start his assessment and that the Plaintiff could begin having supervised access to the children.
[17] On November 16, 2004, Perkins J. became seized of the child protection application and the family law proceedings. The Plaintiff brought a motion before Perkins J. on January 5, 2005 seeking custody and/or unsupervised access to the children. This motion was denied, with the presiding judge finding that, “[t]he conflict between the parents and the vitriolic things each has to say about the other continue unabated.”
[18] Pursuant to court order, the Plaintiff’s visits with his children from October 8, 2004 to January 2005 were supervised by two CAS workers rather than the usual one case worker. As the CAS Defendants explain it in their factum, these doubly supervised visits were, at least in part, “due to worker safety concerns arising from the criminal charges”.
[19] The CAS’ child protection application was further adjourned by Perkins J. on February 24, 2005 and March 3, 2005 while the report of the court appointed assessor was being prepared. That report was filed with the court on March 24, 2005. That report concluded that the children “must be protected from the experience of parental conflict”, and recommended that they remain in the primary care of their mother, T.G..
[20] Following the filing of the assessor’s report, Perkins J. adjourned the child protection application and the family proceedings several more times through 2005 and mid-2006. Those proceedings continued toward trial under his case management, during which time the Plaintiff had access visits with his children supervised by a therapeutic access worker from the CAS’ family intervention program.
[21] On June 12, 2006 and September 26, 2006, consent orders were entered placing the children in temporary custody and control of T.G.. These consent orders granted the Plaintiff four hours per week of supervised time with the children at the CAS offices (and later under professional community supervision).
[22] In September 2006, at the outset of the criminal trial in the Ontario Court of Justice on the October 3, 2004 charges of uttering death threats and possession of a deadly weapon, Blouin J. issued a key evidentiary ruling. He found that a voice recording of the Plaintiff’s alleged threats that was made and given to the Police by T.G. and her boyfriend, D.G., was “not authentic” and therefore inadmissible. Following the trial, on September 29, 2006, the Plaintiff commenced the within action by way of a Notice of Action. As noted at the outset, the action claims damages for various wrongdoings against the CAS Defendants, T.G., and the Police.
[23] On December 5, 2006, the Plaintiff was acquitted of all criminal charges.
[24] On December 19, 2006, the Plaintiff and T.G. consented to an extension of the terms of the June 12^th^ and September 26^th^ custody and access orders. Then, on May 2, 2007, the Plaintiff brought a motion seeking, inter alia, an order for unsupervised or semi-supervised access to his children. This motion to vary the access arrangements was denied by Perkins J. on July 26, 2007.
[25] The CAS’ child custody application and the family proceeding between the Plaintiff and T.G. was tried in Family Court by Maddalena J. in March and April, 2008, with reasons for judgment released on November 12, 2008. During the course of the trial, the Plaintiff and T.G. settled the custody issue. The Plaintiff consented to T.G. having permanent custody of the children. The issues remaining before Maddalena J. were access by the Plaintiff, a contempt motion by the Plaintiff against T.G., a restraining order sought by T.G., and the termination of the CAS Defendants’ involvement with the family.
[26] Maddalena J. ruled against the Plaintiff on all of the outstanding issues. She ordered that there be no access by the Plaintiff with his children, although she left open the possibility of access being granted at the instance of the children at some future time. The Plaintiff’s contempt motion was dismissed and T.G.’s restraining order was granted prohibiting the Plaintiff from going within 100 meters of T.G., the children, their place of residence, employment, or school.
[27] In her reasons for judgment, the trial judge noted that, “I am very mindful of all those cases that indicated that termination of access of children with a parent should only occur as a very last resort and only in very extreme circumstances.” She then went on to conclude that, “[i]t is not in the best interest of both of these children to have continued visitation with their father.” In reaching this conclusion, Maddalena J. held: “I am persuaded by the evidence that the mother and children are intimidated by A.D.”, and that “A.D. presents as domineering and dismissive of those who do not agree with his views.”
[28] Significantly, the trial judge was critical of the Plaintiff’s disregard of the good offices and services offered by the CAS. As she explained in her reasons for judgment, “[t]his court further finds on the evidence that A.D. had sufficient opportunity to avail himself of resources of the society [i.e. the CAS] and of others and yet chose not to do so.”
[29] Maddalena J. also noted that the Plaintiff had terminated the services of the CAS’ parenting coordinator and was not cooperating in the CAS’ trauma assessment process. She further noted that the Plaintiff “chose to stop communicating [with] the Society when Denise Lehman-Brown was the Society worker.”
[30] The Plaintiff abandoned his appeal of Maddalena J.’s decision in 2010.
III. Accusations Against the Plaintiff
[31] The Statement of Claim is premised on T.G. making, the Police making and repeating, and the CAS Defendants repeating and acting on, highly inflammatory and harmful accusations against the Plaintiff. These accusations have turned out to be untrue.
[32] The CAS files produced in the record before me contain notes, emails, and messages about the Plaintiff that record or summarize communications from the Police and T.G.. The evidence shows that the inflammatory accusations of terrorist affiliations with which the action is concerned commenced from the inception of the CAS’ involvement with the Plaintiff’s family.
[33] Counsel for the CAF Defendants states in her factum that that the CAS’ involvement with the Plaintiff’s family “did not originate from nor proceed based on allegations of A.D. having possible connections with the Taliban or Al Qaida, or being a violent and extremist Arab or Muslim fundamentalist cult leader…” At the hearing, counsel likewise submitted that the CAS’ involvement was, at the outset, a result of the high conflict family dispute and nothing more.
[34] At the same time, several of the Individual CAS Defendants state in their affidavits that the egregious allegations of terrorism and international cult leadership were raised by T.G. in her very first phone calls to the CAS. On June 12 and 24, 2004, T.G. stated that her spouse is a Muslim religious leader who had cult and/or terrorist connections and who believed that anyone who commits adultery should be put to death. This information was duly recorded in the CAS file.
[35] According to the CAS case notes, one of the Police defendants informed the CAS Defendants on October 3, 2004 – the same day as the police tactical squad raid on the Plaintiff’s home – that the Plaintiff is a “Guy connected to Al Qaida + Taliban…guy is world wide cult leader”. This belief, of course, would help explain why a raid that included no less than 12 squad cars, a canine unit, bomb disposal unit, and helicopter was conducted on that date.
[36] The massive police raid yielded nothing more than a knife in the glove compartment of the Plaintiff’s car and a series of complaints by T.G. supported by the inauthentic voice recording produced by T.G. and her boyfriend. Two years later, Blouin J. finally dismissed the charge of uttering threats and found that “there is no evidence at all” that the knife in the car was possessed for a dangerous purpose. R v A.D., Information #04-05988, Reasons for Judgment of Blouin J., December 5, 2006, at 2 (OCJ).
[37] The same day as the police raid, a Safety Assessment was completed by the CAS Defendants and placed in the Plaintiff’s file. This assessment, which was described by the CAS Defendants in cross-examination as an “important document” and is reproduced in the motion record. It states in part:
A.D.’s connections to Al Quada and his world wide following of his independent religion, ‘The world life institute’ is cause for concern. It was indicated to police by Ms. D [i.e. T.G.] tha the religion is a cult and to be indoctrinated into his religion one must swear to kill for him and by the rules of the Koran, even killing their children should this be required…Mr. urakovic is a high profile doctor, leader of a world wide religious group, and associated with the Al-Quida.
[38] On October 5, 2004, two days after the police raid, CAS case notes disclose a meeting between the CAS Defendants and the Police. These notes record a series of comments about the Plaintiff that doubtless caused concern among both the Police and the CAS:
“USA intelligence agencies alerted to his arrest – interested in this man and his links to Al Quaeda – all under alert – 387 websites that mention this man…followers are generational – take an oath to kill for him…possibility that T. [T.G.] may go into witness protection – national security threat…- travels frequently to countries of interest.”
[39] The CAS file on the Plaintiff contains a note written several days later that follows up on the national security threat allegedly posed by the Plaintiff: “Police have contacted CSIS and American Intelligence.” The following week, the director of the CAS and one of the CAS Defendants emailed other CAS employees as follows:
While listening and speaking with Det. Brown, I learned the following: A.D. is under surveillance. There is ‘secret’ information on him. There was someone from the ‘intelligence community’ in the waiting area at the courthouse [at the October 5, 2004 bail hearing].
[40] On October 6, 2004, the CAS Defendants completed a Comprehensive Assessment report and placed it in the Plaintiff’s file. This Comprehensive Assessment states:
A.D. is Croatian and is reported to be a ‘Sufi Sheikh’ with a large number of ‘followers’, and having alleged ties to Al Qaida. He is of the Muslim faith”… [T.G.] has also raised concern with A.D.’s religious/cultural status as being cult-like, and the blind obedience his ‘followers’ have to the point of killing for him.
[41] On October 21, 2004, there was a further meeting of the CAS Defendants regarding the Plaintiff which is described as a supervision meeting. The notes of this meeting found in the CAS file on the Plaintiff indicate that:
Police jumped on board for mom. Got excited. ‘Breakthrough case’. Police were really worried. Thought he had a lot of means to kill.
[42] In cross-examination, the CAS Defendants explain that the reference in this note is to the Plaintiff’s alleged connection to terrorist organizations. A Refferral/Report/New Information Form filled out by the CAS Defenants states that, “A.D. was noted by the officer to be a cult leader of a world wide organization as well as connected with the Taliban and Al Quada, terrorist organizations.”
[43] Not surprisingly, the CAS Defendants in cross-examination conceded that the allegations of terrorism and affiliation with Al-Qaeda and the Taliban were “certainly a huge concern”, and that there was “fear that this is certainly a case that was going to be different than others that I had had”. Moreover, it was acknowledged that, “it was information of very huge significance that the U.S. Intelligence agencies were apparently interested in client as a terrorist.”
[44] In an affidavit filed in the Family Court proceedings, one of the Individual CAS Defendants swore that the events of October 2004 – i.e. the information coming from T.G. and the Police, the tactical squad raid on the family home, the criminal charges pressed against the Plaintiff – served to “increase not only my own anxiety but also my sense that A.D.’s connection to Al Queda was real.” This same Individual CAS Defendant answered in cross-examination that, in her 42 years of experience, this was “the first case I had ever had contact with and made decisions on…where the word terrorism was used”.
[45] It only stands to reason that the dramatic accusations leveled at the Plaintiff had a significant impact on the way in which the CAF Defendants approached his case. Indeed, one might well ask, how could they not?
[46] Despite what one of them in cross-examination called “unprecedented” allegations of terrorist connections against the Plaintiff, the CAS Defendants now appear to downplay the impact of these accusations on the way in which the Plaintiff and his family situation were dealt with. In one of the Individual CAS Defendants’ affidavits, the fact that the Plaintiff was a Muslim immigrant who was reported to be connected with Al-Qaeda and the Taliban was described as having “formed only background information”.
[47] The CAS Defendants assert that the information that the Plaintiff might be a world-wide terrorist and cult leader, with followers ready to kill on his behalf, might have gotten their attention but it didn’t really faze them. Plaintiff’s counsel submits in his factum that the Individual CAS Defendants reveal a concerted effort to demonstrate “non-judgmentalism, of not being affected by the allegations”. As a demonstration of this attitude, the CAS Defendants did not want to acknowledge in cross-examination that it was in any way “shocking” to be advised that the Plaintiff was affiliated with Al-Qaeda and the Taliban, organizations the Individual CAS Defendants knew to be responsible for the 9/11 attacks and to be at with Canada and the United in Afghanistan.
[48] Counsel for the Plaintiff submits that this evidence, and this attitude of non-judgmentalism and nonchalance toward dramatic accusations of danger, is highly implausible. I cannot help but agree. Indeed, far from evidencing a lack of bias, which it seems to have been designed to do, it suggests a form of bias against the Plaintiff and a less than good faith approach toward him and toward the investigation they were conducting.
[49] When pressed further in cross-examination, the CAS Defendants did change their view somewhat. They conceded that he terrorist allegations were “certainly a huge concern”, and that the dangerous information about the Plaintiff raised “scary issues” and “big, big issues”. Frankly, in the several years after the 9/11 attacks, this type of international terrorism accusation, together with the information about the supposed interest in the Plaintiff by Canadian and U.S. national security authorities, would have been as “scary” and as “big” as it gets. It would be remarkable if these allegations did not loom large in the CAS Defendants’ assessment of the Plaintiff.
[50] Dramatic as the accusations of terrorist affiliations and cult leadership might be, the most disturbing aspect of the events at issue is what ultimately was revealed about these accusations. In the CAS case notes dated October 5, 2004, the Individual CAS Defendant who attended at the Plaintiff’s bail hearing records a conversation that took place between the Crown and the Police. In one revealing exchange, an officer states that the national security interest in the case has escalated because they had learned that T.G.’s “boyfriend [is] part of finance minister Greg Sorbara personal team”.
[51] The “boyfriend” that the notes refer to is D.G., the same individual that Blouin J. eventually found to have collaborated with T.G. in creating the inauthentic voice recording of the Plaintiff. In any case, the same October 5^th^ notes in the CAS file disclose that, “USA intelligence agencies alerted to his arrest – interested in this man and his links to Al Qaeda.”
[52] The October 5^th^ notes give an early highlight of what eventually became clear – that the entire set of accusations about the Plaintiff, including the interest of the United States authorities in him, must have originated with T.G.. Of course, for the CAS this fact may have been clear enough already. They had heard the terrorism accusation from T.G. herself back in June, well before ever hearing it from the Police. In retrospect, it appears that the Police, and apparently the Americans, never had any independent source of information beyond what T.G. told them about her spouse, his “cult”, her boyfriend’s job, etc.
[53] The Police appear to have recognized relatively soon thereafter that there was something wrong with the picture being painted of the Plaintiff. In an internal CAS email dated October 15, 2004, the CAS Defendants report that the Police were now viewing the Plaintiff and T.G. as a “domestic, not terrorist case”. Less than two weeks after storming his house with a fully equipped SWAT team and helicopter hovering overhead, they had suddenly concluded that the Plaintiff is not an “immediate threat”. Police protection for T.G. thereafter ceased.
[54] Furthermore, notes produced from the CAS file on the Plaintiff dated October 21, 2004 report on a conversation between one of the Individual CAS Defendants and one of the Police defendants that is highly revealing. According to the notes in the record, Detective Browne, one of the Police Defendants herein and one of the officers who was responsible for advising CAS of the terrorism accusations against the Plaintiff, had been criticized by his supervisors for his handling of those accusations.
[55] One would think that such a dramatic reversal of the Police view of the Plaintiff would have prompted a prominent notation in the CAS file, to say nothing of a re-evaluation of the family dispute in which they had intervened. It is central to the Plaintiff’s claim in the within action that no such notation or re-evaluation ever took place. The CAS Defendants’ intentionally wrongful and/or negligent discharge of their duties is alleged to have continued.
[56] Further confirmation of the source of the inflammatory accusations came two years later, in the judgment following the Plaintiff’s criminal trial. In his oral reasons for judgment acquitting the Plaintiff, Blouin J. of the Ontario Court of Justice explained that “there exists in this case many examples of motivation to fabricate that T.G. was not prepared to admit existed.” R v A.D., supra, at 5. He then observed that T.G. had testified that either she did not say anything, or did not remember saying anything, to the Police about the Plaintiff’s supposed Taliban and terrorism connection. The trial judge made a point of commenting on this apparent memory lapse [at 3]:
Quite apart from the unlikelihood that you would not remember something so vivid, [the Defendant herein] P.C. Heard testified that the fact T.G. did tell him this, that A.D. was connected to the Taliban and that this comment was not something he remembered but was clearly in his notes that he wrote down that particular day, October 2^nd^ or 3^rd^.
[57] As I indicated to counsel at the hearing, I hesitate to make any pronouncements in this motion that might affect the parties that have not put in an appearance. I have not had an opportunity to see any evidence from either T.G. or the Police or to hear submissions from their counsel. That said, in assessing the CAS Defendants’ request for summary judgment there are certain salient points in the factual background of this dispute that I cannot avoid. One of them is the outcome of the criminal trial and the reasons pronounced by the court in that trial.
[58] Blouin J. fell just short of stating outright that T.G. had fabricated the accusations against the Plaintiff. What he did find was that “these motives [to fabricate] caused me to have doubt about the accuracy of the allegations and the fact that T.G. would not admit there was any motivation, caused me real concern.” R v A.D., supra, at 3-4.
[59] As quoted above, Blouin J. also found the Police credible in their testimony that T.G. was the origin of the terrorism and Taliban accusations against the Plaintiff. Given the CAS file notes indicating that the Police dropped the terrorism allegation by mid-October 2004, and given that one of the Police defendants had credibly testified that T.G. was the source of those accusations, it is apparent that much of the Plaintiff’s unfortunate circumstance flows from non-credible information supplied by T.G..
[60] In find it noteworthy that a substantial amount of information about the allegations of terrorist connections against the Plaintiff was placed before Maddelana J. in the 2008 child protection and family law proceeding. Plaintiff’s counsel has reproduced in his factum portions of the 2008 affidavit evidence submitted by one of the Individual CAS Defendants, who went over the events of the first week in October 2004. She included in her narrative a repetition of much of what she was told at the time: “A.D. was under surveillance, that there was ‘secret’ information, and that someone from CSIS was in the waiting area of the courthouse outside of the Society’s office.”
[61] The same Individual CAS Defendant was cross-examined in that 2008 proceeding. During the course of her examination, she seemed to find it difficult to concede that the Plaintiff had actually been acquitted in 2006. For an organization that had taken such a strong interest in the criminal proceedings that it attended the bail hearing on October 5, 2004, the failure of this Individual CAS Defendant to recall with any precision the outcome of the criminal proceedings is surprising:
Q: And ‘The police were really worried, thought he had a lot of means to kill.’ Again, again, that would be related to the allegations of terrorism?
A: Again, not to be difficult, but it also could be related to the death threats. He was threatening to kill people.
Q: Okay. And just for clarification, are you aware of what happened to the criminal charges?
A: Yes, I am, very indirectly, yes, I am aware.
Q: And what happened to those –
A: It is my understating – well, first of all there were no convictions. It’s my understanding that the – I’m not sure if he was – okay, there was some concern about tampered evidence.
Q: He was acquitted of all charges?
A: Acquitted, okay, yeah, and there was concern about tampered evidence, and I know that there was no findings of –
Q: No findings of guilt?
A: I don’t think so, yeah.
[62] The CAS witness dismissed the concern about the Plaintiff being identified as being an international terrorist cult leader, only to focus on the fact “[h]e was threatening to kill people.” The Plaintiff, of course, was acquitted of uttering death threats, yet it seems evident from this transcript that had she not been pressed she would not have been forthcoming in clarifying that T.G.’s allegation that the Plaintiff was making such threats was rejected by the court. It does not appear to have registered with the witness that T.G.’s credibility had been seriously doubted in the criminal court judgment.
[63] Much as the Individual CAS Defendant tried to downplay it, she had indicated in her 2008 affidavit that back in October 2004 the CAS was obliged to take it seriously that the Plaintiff was identified as a suspected terrorist. That is certainly accurate; if anything, it is an understatement. It is therefore noteworthy that while the Police retraction of the terrorist allegation is disclosed in her affidavit, it is done in rather tempered language hinting of uncertainty: “the matter appeared to be a domestic matter.”
[64] The CAS attempts to explain its indifference to the falsity of the outlandish accusations against the Plaintiff by stating in its factum that, “the York C.A.S. has no jurisdiction over matters of terrorism or national security.” That argument, however, takes aim at a straw man. The Plaintiff’s claim does not demand that the CAS do what CSIS does; rather, the claim only seeks compensation for the CAS failing to do what it supposedly does – i.e. do a keep an appropriate and updated file so that its workers will competently, without bias and with good faith, investigate and assess the family situation in which they intervene.
[65] It is a triable issue as to whether the terrorism, Taliban, and death cult accusations spread by T.G. to the Police and to the CAS Defendants were internalized by CAS and intentionally left in file and acted upon. It is not credible that these allegations were not alarming and did not inflame the assessment of the Plaintiff in a biased way. Not only was their abandonment barely noted in the CAS file, but the fact that the apparent source of them was T.G. does not appear to have factored into the CAS’ family assessment.
[66] If there was such internalization of the inflammatory accusations against the Plaintiff, the intentional conduct and negligence alleged to have occurred in managing the CAS file also reflected a form of bias and bad faith in dealing with him. This combination of wrongful acts, in turn, may have impacted not only on the beginning of the child protection and family proceedings against the Plaintiff but on their end as well.
IV. Legal Issues
a) Summary Judgment
[67] In the ordinary case, I would at this point conclude on the facts that, at least with respect to the negligence claim, this is not a case for summary judgment in favour of the CAS Defendants. On the evidentiary record in this motion, I cannot say that there is “no genuine issue of material fact requiring a trial”. Rules of Civil Procedure, RRO 1990, Reg 194, Rule 20.01(3). I certainly cannot say, on the facts before me, that the Plaintiff’s claim “has no chance of success” or that it has been “shown to be without merit.” Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764, at paras 42, 75.
[68] Quite the contrary, to the extent that I have an appreciation of the evidence – and I am not at all prepared to conclude that my appreciation is sufficiently full to dispense with the need for a trial – it appears to me that the CAS Defendants have an uphill battle in countering the strong evidence of intentional misfeasance and/or negligence, in combination with bias and, potentially, bad faith, presented by the Plaintiff. On the facts, therefore, the test for summary judgment has not been made out by the CAS Defendants as moving parties.
[69] The Court of Appeal has noted that “the full appreciation test may be met in cases with limited contentious factual issues.” Combined Air, supra, at para 52. That description hardly fits the present case. A trial judge would need to hear the evidence in its entirety, with the CAS Defendants’ evidence placed alongside the expected evidence of T.G. and the Police, in order for a proper determination of the claim to be made.
[70] This, however, is not the ordinary case. There are legal issues in connection with the claim that may put the issues raised herein in a somewhat different light. Each of the causes of action raise issues which need to be separately canvassed.
b) The Slander Claim
[71] As noted at the outset of these reasons, the Amended Statement of Claim alleges two sets of wrongs against the CAS Defendants: slander and intentional/negligent discharge of duty. Since the latter tort claims are by far the stronger of the causes of action, it is convenient to first address and dispense with the slander claim.
[72] The Amended Statement of Claim contends that the CAS Defendants slandered the Plaintiff by stating to the CAS’ own employees, to members of the Police, and to unidentified others that the Plaintiff was a violent cult leader associated with Al Qaeda and the Taliban. The Plaintiff has not pleaded libel, only slander in respect of these allegedly defamatory statements.
[73] Evidence in the CAS files shows that the impugned statements were written in memos, recorded in written notes, and communicated by email. But there is no evidence in the record that the statements about the Plaintiff were ever spoken to anyone by the CAS Defendants. Other than in testimony in the various child protection and family proceedings, which would qualify as instances of absolute privilege, there is no suggestion that any of the Individual CAS Defendants spoke, as opposed to wrote and published in their file, the defamatory statements about the Plaintiff.
[74] It has long been the law that libel occurs with the publication or dissemination of the defamatory statement in written form, while slander occurs when the defamatory statement is communicated orally. The Supreme Court of Canada in Hill v Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, at para 115, traced this distinction to the judgment of Baron Hale in King v Lake (1679), 145 ER 552. At the very least, as against the CAS Defendants the Plaintiff appears to have pleaded the wrong tort.
[75] I hasten to add that defamation, whether spoken or written, was not by any stretch of the imagination the Plaintiff’s most serious problem. The evidence here is not that the CAS Defendants disseminated the terrorism accusation to the Police or anyone else, but rather that they received this accusation from the Police and T.G. and circulated it among themselves. The real injury alleged by the Plaintiff is not that his reputation was harmed among CAS employees, but rather that the CAS Defendants intentionally and/or negligently discharged their duty by failing to correct the information in their file and by acting upon that information.
[76] The Plaintiff’s claim against the CAS Defendants will rise and fall on the allegation that they ruined his family life in the miscarriage of their statutory duty. Whether they also ruined his reputation in their own inner circle by repeating defamatory statements among themselves is so subsidiary a question that to dismiss it is to dismiss very little. It is the balance of the allegations in the Amended Statement of Claim that is at the heart of the damage that the Plaintiff says that he suffered at the CAS Defendants’ hands.
[77] In any case, there is no genuine case to be tried with respect to the claim of slander against the CAS Defendants.
c) The Intentional Tort/Negligence Claim
[78] The CAS Defendants make three legal arguments for dismissing the balance of the Plaintiff’s claim against them. Relying on Syl Apps Secure Treatment Centre v B.D., 2007 SCC 38, [2007] 3 SCR 83, they argue: i) the CAS and its employees owe their sole duty of care to the child, not the parents of the child; ii) the employees of the CAS have a statutory immunity from suit; and iii) for policy reasons it is unwise to extend the liability of the CAS as parallel proceedings may ensue.
i. Duty of care
[79] The Supreme Court of Canada in Syl Apps was concerned with a very special legal context – the duties that medical professionals owe to their child patients. Abella J. commented, at para 56, that “[r]ecognizing a duty of care to parents in this context could result in conflicting duties in the provision of medical treatment to children who have been removed from their parents’ custody.”
[80] Cases from across the country have distinguished Syl Apps on the ground that it applies only to the medical treatment context, Admassu v Peekaboo Child Care Centre, [2008] OJ No 3946, at paras 14-15 (SCJ), or the context of a child in the care of a state agency, McQueaid v Royal Canadian Mounted Police, 2009 PESC 40, at paras 22-24 (PEI SC). It has not been taken to apply to all situations in which children’s organizations are involved in family matters.
[81] At the very least, the Syl Apps immunity has been limited to cases where the claim is brought by a parent alleging mistreatment of the child following the child’s removal from the parental home. This court has specifically found that Syl Apps only applies to “a claim for alleged negligent treatment and care of a child after apprehension, not a claim for negligent investigation.” K.M.D. v Children’s Aid Society of the Region of Peel, [2008] OJ No 4772, at para 23 (SCJ).
[82] More than that, the British Columbia Court of Appeal in Harrison v British Columbia (Children and Family Development), 2010 BCCA 220, at para 40, has advised that here are good reasons not to engage in expansive applications of the immunity principle:
I would not simply extend the ruling in Syl Apps to any relationship that involves a child protection worker, thereby disposing of the present action and precluding the possibility of any duty being recognized other than to the child. Different relationships will inevitably raise different considerations, and each warrants a fresh analysis sensitive to those considerations.
[83] The CAS Defendants rely heavily on the notion that, “[t]he duty is owed to the children, not the parents.” Major v. York Region Children's Aid Society, 2011 ONSC 5635, at para 13 (SCJ). As their counsel puts it in her factum, “[a]ny such duty [of care] would be owed only to the A.D. children – Adiya and Sofia. Neither is a party to this action.” The suggestion made by the CAS Defendants is that the children could sue – presumably, through a guardian since they are underage – but a parent cannot.
[84] The Plaintiff would be justified in perceiving that response to be a difficult pill to swallow. After all, an important element of his claim is that the negligence of the CAS Defendants resulted in the deterioration of his relationship with the children, which in turn resulted in T.G. achieving sole custody. If T.G., who was found by the criminal court to be the source of the terrorism accusation against the Plaintiff, is the children’s litigation guardian, it is obvious that no law suit will be brought in their name.
[85] The evidence in the record suggests not only negligence, but an internalization of bias against the Plaintiff that led to a form of protracted bad faith and intentional misfeasance by the CAS Defendants in carrying out their duties. As the Court of Appeal held in B.(D.) v. Children's Aid Society of Durham Region (1996), 1996 CanLII 1067 (ON CA), 136 DLR (4th) 297, “a combination of negligence and lack of good faith in the performance of their statutory duties would give rise to a common law cause of action against them.”
[86] This is not to say anything contrary to what the Supreme Court observed about conflicting duties. That is, it is the care agency’s duty to intervene where, to use the Abella J.’s example, “‘the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment…’” Syl Apps, supra, at para 49, quoting N. Bala "Child Welfare Law in Canada: An Introduction", in N. Bala et al., eds., Canadian Child Welfare Law (2nd ed. 2004), at pp. 1-2. In such cases the CAS will be in a position of inherent conflict with the parents.
[87] This conflict is particularly acute where the context is one of medical treatment and intervention. It reaches a critical level where the CAS interaction with the family coincides with criminal charges being brought against a parent. The CAS employees may be deeply involved in the Crown’s case, and may even be witnesses against the parent facing criminal charges.
[88] The recent decision in G.P. v Children’s Aid Society of Hamilton, 2011 ONSC 4231, illustrates this point. In G.P., the father was convicted in criminal court of assault on both his partner and his children. He subsequently alleged in a statement of claim that the CAS had engineered his conviction and had procured perjured testimony from his children. His civil action was a blatant attempt to undo what the criminal court had done. The court found, at para 22, that, “[i]t is clear that the plaintiff is seeking to somehow re-litigate…his criminal court conviction by means of this action.”
[89] A party cannot be permitted to collaterally attack a criminal verdict by means of a civil suit. Immunity properly applies where that is the upshot of the civil action. In the present case, unlike in the G.P. case, the Plaintiff is not seeking to undo what the criminal court did in December 2006. This action is not an attempt to relitigate the criminal judgment. The Plaintiff, after all, was acquitted. What the Plaintiff brings here is an altogether new claim: had the CAS Defendants not been remiss in their duties, had they properly and in good faith investigated and not ignored what the criminal court found, he would not have gone through his ordeal and suffered such loss.
[90] In short, the Syl Apps case speaks to immunity for certain professionals caring for children in special contexts. It does not provide blanket immunity for CAS-type organizations in all contexts in which they touch people’s lives.
[91] The allegation here is that upon learning that the terrorism accusations were false, and upon learning the source of those allegations, the CAS Defendants failed to correct their file; instead, they continued to act on the false allegations and failed to right the wrong with which their intervention began. This context is significantly different from Syl Apps and its prodigy. I can think of no principled basis on which to extend immunity to the internalized bias and wrongful discharge of duty suggested by the pleading and evidentiary record before me. Any such extension would risk interpreting the Syl Apps immunity as a form of impunity.
[92] Absent a Syl Apps-like immunity, the relevant test for finding a duty of care is that of reasonable foreseeability. Kamloops (City of) v Nielsen, 1984 CanLII 21 (SCC), [1984] 2 SCR 2. As Lord Atkin said in Donoghue (or McAlister) v. Stevenson, 1932 CanLII 536 (FOREP), [1932] AC 562, at 580, persons “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.
[93] In addition to reasonable foreseeability, the plaintiff and defendant must be in a relationship of sufficient proximity to ground a duty of care. And while there is no hard rule defining what is proximate in any given situation, Lord Denning has explained that it is an added criteria to finding a duty of care that generally reflects a judgment as to what is “instinctively just”. Lamb v London Borough of Camden, [1081] QB 625, at 629 (CA).
[94] There is little doubt that once one factors out an immunity rule, there is no lack of proximity between the CAS and a parent. A parent is not a distant claimant seeking compensation for secondary damage beyond the direct damage caused by the defendant. Rather, as the Supreme Court acknowledged, a parent in CAS-instigated child protection proceedings is in the direct line of fire.
[95] The very reason for sometimes granting immunity – the “genuine potential for ‘serious and significant’ conflict with the service providers’ transcendent statutory duty to promote the best interests, protection and well-being of the children in their care” [Syl Apps, para 41] – speaks to the foreseeability and proximity of the parent. In the absence of an immunity doctrine, ordinary foreseeability and proximity principles would establish that when the CAS intervenes in a child protection matter it owes a duty of care to, inter alia, a parent. At the very least, this raises a genuine issue requiring a trial.
ii. Statutory Immunity
[96] The Individual CAS Defendants, as opposed to the CAS itself, raise a statutory basis for claiming immunity. Section 15(6) of the Child and Family Services Act, RSO 1990, c. C.11, provides:
Protection from personal liability
(6) No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.
[97] The Individual CAS Defendants are alleged to have intentionally or negligently carried out their duties. To displace the statutory immunity, the evidence must demonstrate bad faith in the execution of their duties.
[98] The Individual CAS Defendants submit that in the absence of material particulars of bad faith, the pleading does not set forth a reasonable cause of action and should be struck. They reiterate the statement in Syl Apps, supra, at para 60, that section 15(6) of the Child and Family Services Act reveals a “clear legislative intent to protect those working in the child protection field from litigation for the good faith exercise of their statutory duty.”
[99] For the reasons stated above, the record raises not only evidence of negligence by the CAS Defendants, but a suggestion of bias and bad faith – which amounts to intentional wrongdoing – that requires a trial. There is evidence of this in the Individual Defendants’ attitude toward the Plaintiff in 2004, when they received the inflammatory accusations about the Plaintiff and then seemingly failed to adequately register their retraction by the Police, through 2006, when they failed to note that the Plaintiff was acquitted of all criminal charges in a judgment that sourced those accusations to T.G., to 2008, when testimony by the CAS Defendants in the child protection and family proceedings suggested an internalization of bias and bad faith toward the Plaintiff.
[100] Section 15(6) of the Child and Family Services Act does not provide immunity for the Individual CAS Defendants under these circumstances. I do not conclude at this stage that intentional misconduct or bad faith has been proven by the Plaintiff; but there is sufficient evidence in the record to require a trial of these issues.
[101] The claim therefore cannot be dismissed against the CAS Defendants on this basis.
iii. Parallel Proceedings
[102] At para 63 of Syl Apps, Abella J. stated that, “[r]ecognizing such a duty [of care] in this context would create the possibility of parallel proceedings, which could lead to a relitigation of matters already determined at the child protection hearing.” The CAS Defendants submit that relitigation of the child protection and family issues is precisely what the Plaintiff here seeks to do.
[103] Counsel for the CAS Defendants explains this point in her factum, stating that the Plaintiff’s “loss of custody and access were the subject of lengthy Family Court proceedings and orders spanning 4 years and culminating in a 19 day trial before Justice Maddalena in 2008. Decisions on access and custody were made by the Family Court based on the evidence put forward by the parties through their counsel.” She concludes this portion of her argument by stating that, “[t]he Family Court record is indisputable: allegations of terrorist or cult connections were not a factor in the Court’s multiple orders and ultimate trial decision which governed A.D.’s access to his children.”
[104] I agree that the history of proceedings shows that the CAS’ involvement with the Plaintiff was adjudicated by either Family Court or criminal court on numerous occasions. Family Court determined that the Plaintiff was unfit for custody and unsupervised access to his children, and found that the Plaintiff had not been able to recognize his own poor conduct. The criminal proceedings in the Ontario Court of Justice determined that the charges against him were not due to his dangerous conduct, but rather were due to information that T.G. told the Police and that the Police acted on and passed to the Crown.
[105] I do not agree that the Family Court record answers the allegations in the within action. Allegations of terrorist or cult connections may not have been expressed by the judges issuing those orders, but that is not the basis of the Plaintiff’s claim herein. These inflammatory accusations were made to the CAS at the very outset of their involvement, they could not have been ignored by the CAS Defendants, they formed part of the CAS file, their retraction was never adequately noted, the findings in the criminal judgment that confirmed their source were never noted, the disclosure of their falsity never prompted any rethinking by the CAS, and the testimony of the Individual CAS Defendants throughout suggests an internalization of bias. The Plaintiff’s claim contends that the impugned accusations are part of the CAS Defendants’ approach to the child protection issue whether they were made explicit to the Family Court judges or not.
[106] In all of these proceedings, none of the courts addressed the question of fault on the part of the CAS, the Police, and T.G. in bringing about and perpetuating the Plaintiff’s losses. It is that question of fault that is at stake in the within action.
[107] The proceedings in which the CAS participated dealt with the best interests of the children, while the CAS did not participate in the one proceeding in which fault was actually in issue – the criminal trial. After all of these proceedings, questions of whether the CAS’ actions were tortious, whether they reflected an internalized bias, and whether they exhibited bad faith, are not res judicata or subject to any estoppel. The CAS has never been party to any proceedings involving the Plaintiff and his family in which it has had to answer for its own conduct.
[108] The within action does not focus on the children but rather has a significantly different focus: the rights of the Plaintiff. There is no abuse of process in litigating this claim against the CAS Defendants, as it has never been litigated before.
[109] Of course, the Plaintiff cannot now re-open any of the conclusions reached in Family Court or, for that matter, in the criminal proceedings. They are all final and must be taken as given. Some of those rulings may be central to the losses that the Plaintiff claims, and others may either undermine his claim or help him prove his case at trial. Others still may be irrelevant to the larger question of negligence and causation that the trial of this action will explore.
[110] There is no suggestion that the Plaintiff wishes to use this action revisit the Family Court’s access and custody rulings. He abandoned his appeal of the judgment of Maddalena J. several years ago. Like other plaintiffs who have pursued analogous civil claims following onerous family proceedings, he appears to have “conceded defeat” in actually re-establishing the relationships that have been “irretrievably broken”. Carnahan v. Coates (1990), 1990 CanLII 2299 (BC SC), 71 D.L.R. (4th) 464, at para 12 (BC SC).
[111] The within action, rather than being a repeat of what has gone before, is rather a claim that the Plaintiff has talked about during the course of other proceedings but has never had the opportunity to take to trial. The damage that the Plaintiff claims to have suffered throughout this difficult period will not be collateral or subordinated to the issues before the court, but in the trial of this action will be front and centre. The claim does not bump up against a policy of preventing relitigation, as it is the first time that the CAS has been a defendant in any claim by the Plaintiff.
V. Conclusion
[112] The claim in slander against the CAS Defendants is dismissed. The balance of the claim against the CAS Defendants must proceed to trial. The motion for summary judgment is accordingly partly granted and partly dismissed.
[113] The Plaintiff’s claim, although not entirely novel as a matter of law, is factually quite unique and raises a number of legal issues that the CAS Defendants understandably wanted addressed in this motion. Given the mixed results, there will be no costs of the motion for or against either party.
Morgan J.
Released: February 12, 2013
COURT FILE NO.: 06-CV-319553
DATE: 20120213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.D.
Plaintiff
– and –
T.G., Regional Municipality of York Region Police Services Board, Peter heard, Scott Browne, York Region Children’s Aid Society, Deena Hugh-Yeun, Bonita Majonis, Denise Lehman Brown, and Certain Unnamed Persons
Defendants
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: February 12, 2013